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OBSERVATIONS UPON 

Senate Document, No. 49, 66th Congress, 1st 
Session, Marked, 

"TREATY OF PEACE WITH 
GERMANY", 

Submitted October 18th, 191 9, 



To 



President Woodrow Wilson, and Vice- 
President and President of the Senate, 
Thomas R. Marshall, Washington, D. C. 

By 

As E. Anderson, Esq., 

1020 Bessemer Building 

Pittsburgh, Pa. 



%. 



V- 



Compliments of 




First Edition 200 Copies 



•A7M 



LAW OFFICES 

A. E. ANDERSON, 
BESSEMER BUILDING. 
PITTSBURGH, PA. 

BELL PHONE 



October 18th, 1919. 

Honorables Woodrow Wilson, President, and 

Thomas R. Marshall, Vice-President, and 
President of the Senate, United 
States of America, 

Washington, D. C. 

My Dear President and Vice-President: 

Consideration of Senate Document No. 49, 66th 
Congress, 1st Session, marked ''Treaty of Peace with 
Germany, ' ' leads to the following observations : 

First: The word "Treaty" is denned as "a 
formal compact between nations, ' ' with similar stand- 
ing as to sovereignty satisfactory to the respective 
peoples involved. 

Second: By the Armistice of November 11th, 
191ft Germany yielded her sovereignty to the Allied 
and Associated Powers to the extent set forth in the 
Articles then signed, and has so continued. 

Third: On June 28th, 1919, the original of the 
Senate Document referred to was signed at Versailles, 
in the manner referred to in the " Views of the Min- 
ority" of the Committee on Foreign Relations in the 
following language : 

"The power of compulsion has been ex- 
hausted. Germany was told where to sign and 
when to sign and when to ratify, and Germany 
has closed the chapter by signing and ratifying. 
Germany cannot be compelled to do anything 



more or different with regard to this treaty by 
being confronted with an amended treaty whether 
once a month, day or week. There must be a 
finality to ultimata in a treaty by compulsion. If 
an amended treaty is not signed by Germany, 
then it is in none of its parts binding on her." 
Fourth: Why is compulsion proper in one sen- 
tence, but impossible in the following sentence? This 
confusion of thought shows quite effectively that Ger- 
many did not sign said instrument as a ''nation" with 
sovereignty, but as a yielded belligerent under "com- 
pulsion" of the Allied and Associated Powers in ac- 
ceptance of the detailed terms set forth therein. 

Fifth: Therefore, Germany was not in position 
to make a "treaty," and the title of said instrument 
should be changed to read: 

"A MANDATE TO GERMANY." 

Sixth: The United States of America is a cor- 
poration, and the Constitution is its Charter, with cer- 
tain express powers for purposes of government of 
the People of the United States of America in accord- 
ance with the provisions of the Preamble of said Con- 
stitution, and with added implied powers sufficient 
when needful to carry into effect the express powers 
granted. 

Seventh: A comparison of said Senate Docu- 
ment with said Preamble of said Constitution of the 
United States seems to show that the original of said 
Senate Document does not come within the purposes 
set forth in said Preamble, and that therefore it must 



Gift 
Author 
KGV IS IS/5 



be considered as ultra vires, and beyond the powers 
and duties of the President and the Senators under 
their respective oaths' as such officers of the United 
States of America. It follows, therefore, that reser- 
vations or amendments cannot create a legal docu- 
ment where power is wanting to approve the same in 
its entirety. 

Eighth: In support of such viewpoint, the fol- 
lowing authorities, Supreme Court of the United 
States, are cited: 

In Marbury v. Madison, 5 U. S. 137, 175, decided 
February 24th, 1803, Mr. Chief Justice Marshall said: 
"That the people have an original right to 
establish, for their future government, such prin- 
ciples as, in their opinion, shall most conduce to 
their own happiness, is the basis on which the 
whole American fabric has been erected. The ex- 
ercise of this original right is a very great exer- 
tion ; nor can it, nor ought it, to be frequently re- 
peated. The principles, therefore, so established, 
are deemed fundamental: and as the authority 
from which they proceed is supreme, and can 
seldom act, they are designed to be permanent. 

"This original and supreme will organizes 
the government, and assigns to different depart- 
ments their respective powers. It may either stop 
here, or establish certain limits not to be tran- 
scended by those departments. 

"The government of the United States is of 
the latter description. The powers of the legis- 
lature are denned and limited; and that those 
limits may not be mistaken or forgotten, the con- 



stitution is written. To what purpose are powers 
limited, and to what purpose is that limitation 
committed to writing, if these limits may, at any 
time, be passed by those intended to be restrain- 
ed? The distinction between a government with 
limited and unlimited powers is abolished, if those 
limits do not confine the persons on whom they 
are imposed, and if acts prohibited and acts 
allowed, are of equal obligation. It is a 
proposition too plain to be contested, that the 
constitution controls any legislative act repug- 
nant to it; or that the legislature may alter the 
constitution by an ordinary act. 

"Between these alternatives, there is no mid- 
dle ground. The Constitution is either a superior 
paramount law, unchangeable by ordinary means, 
or it is on a level with ordinary legislative acts, 
and, like other acts, is alterable when the legis- 
lature shall please to alter it. If the former part 
of the alternative be true, then a legislative act, 
contrary to the constitution, is not law: if the lat- 
ter part be true, then written constitutions are 
absurd attempts, on the part of the people, to 
limit a power, in its own nature, illimitable. 

"Certainly, all those who have framed writ- 
ten constitutions contemplate them as forming 
the fundamental and paramount law of the na- 
tion, and consequently, the theory of every such 
government must be, that an act of the legisla- 
ture, repugnant to the constitution, is void. This 
theory is essentially attached to a written con- 



stitution, and is, consequently, to be considered, 
by this court, as one of the fundamental prin- 
ciples of our society. It is not, therefore, to be 
lost sight of, in the further consideration of this 
subject. 

"If an act of the legislature, repugnant to 
the constitution, is void, does it, notwithstanding 
its invalidity, bind the courts, and oblige them to 
give it effect! Or, in other words, though it be 
not law, does it constitute a rule as operative as 
if it was a law? This would be to overthrow, in 
fact, what was established in theory; and would 
seem, at first view, an absurdity too gross to be 
insisted on. It shall, however, receive a more 
attentive consideration. It is emphatically, the 
province and duty of the judicial department, to 
say what the law is. Those who apply the rule 
to particular cases, must of necessity expound 
and interpret that rule. If two laws conflict with 
each other, the courts must decide on the opera- 
tion of each. 

"So, if a law be in opposition to the con- 
stitution ; if both the law and the constitution ap- 
ply to a particular case, so that the court must 
either decide that case, conformable to the law, 
disregarding the constitution; or conformable to 
the constitution, disregarding the law; the court 
must determine which of these conflicting rules 
governs the case: this is of the very essence of 
judicial duty. 

"If then, the courts are to regard the con- 
stitution, and the constitution is superior to any 



6 



ordinary act of the legislature, the constitution, 
and not such ordinary act, must govern the case 
to which they both apply. Those, then, who con- 
trovert the principle, that the constitution is to be 
considered, in court, as a paramount law, are re- 
duced to the necessity of maintaining that courts 
must close their eyes on the constitution, and see 
only the law. 

"This doctrine would subvert the very foun- 
dation of all written constitutions. It would de- 
clare that an act which, according to the principles 
and theory of our government, is entirely void, is 
yet, in practice, completely obligatory. It would 
declare, that if the legislature shall do what is ex- 
pressly forbidden, such act, notwithstanding the 
express* prohibition, is in reality effectual. It 
would be giving to the legislature a practical and 
real omnipotence, with the same breath which 
professes to restrict their powers within narrow 
limits. It is prescribing limits, and declaring 
that those limits may be passed at pleasure. 

"That it thus reduces to nothing, what we 
have deemed the greatest improvement on polit- 
ical institutions, a written constitution, would, of 
itself, be sufficient, in America, where written con- 
stitutions have been viewed with so much rever- 
ence, for rejecting the construction. But the pecu- 
liar expressions of the constitution of the United 
States furnish additional arguments in favor of 
its rejection. The judicial power of the United 
States is extended to all. cases arising under the 
constitution. Could it be the intention of those 



who gave this power, to say, that in using it, the 
constitution should not be looked into'? That a 
ease arising under the constitution should be de- 
cided, without examining the instrument under 
which it arises? This is too extravagant to be 
maintained. In some cases, then, the constitution 
must be looked into by the judges. And if they 
can open it at all, what part of it are they forbid- 
den to read or to obey? * * * It is also not en- 
tirely unworthy of observation, that in declaring 
what shall be the supreme law of the land, the 
constitution itself is first mentioned; and not the 
laws of the United States, generally, but those 
only which shall be made in pursuance of the 
constitution, have that rank. Thus, the particular 
phraseology of the constitution of the United. 
States confirms and strengthens the principle, sup- 
posed to be essential to all written constitutions, 
that a law repugnant to the constitution is void; 
and that courts, as well as other departments, are 
bound by that instrument." 

And in Martin v. Hunter, 14 U. S., 304-323-4, de- 
cided March 20th, 1816, Mr. Justice Story, said: 

"The constitution of the United States was 
ordained and established, not by the states in 
their sovereign capacities, but emphatically, as 
the preamble of the constitution declares, by 'the 
People of the United States.' * * * On the 
other hand, it is perfectly clear, that the sovereign 
powers vested in the state governments, by their 
respective constitutions, remained unaltered and 
unimpaired, except so far as they were granted 



8 



to the government of the United States. These 
deductions do not rest upon general reasoning, 
plain and obvious as they seem to be. They have 
been positively recognized by one of the articles 
in amendment of the constitution, which declares 
that 'the powers not delegated to the United 
States by the constitution, nor prohibited by it to 
the states, are reserved to the states respectively, 
or to the people. ' 

"The government, then, of the United 
States can claim no powers which are not granted 
to it by the constitution, and the powers actually 
granted, must be such as are expressly given, or 
given by necessary implication. On the other 
hand, this instrument, like every other grant, is to 
have a reasonable construction, according to the 
import of its terms; and where a power is i-x- 
pressly given, in general terms, it is not to be 
restrained to particular cases, unless that con- 
struction grows out of the context, expressly, or 
by necessary implication. The words are to be 
taken in their natural and obvious sense, and not 
in a sense unreasonably restricted or enlarged. 

"The constitution unavoidably deals in gen- 
eral language. It did not suit the purposes of the 
people, in framing this great charter of our liber- 
ties, to provide for minute specifications of its 
powers, or to declare the means by which those 
powers shall be carried into execution. It was 
foreseen, that this would be perilous and difficult 
if not an impracticable, task. The instrument was 
not intended to provide merely for the exigencies 



9 



of a few years, but was to endure through a long 
lapse of ages, the events of which were locked up 
in the inscrutable purposes of Providence. It 
could not be foreseen, what new changes and 
modifications of power might be indispensable to 
effectuate the general objects of the charter; and 
restrictions, and specifications, which, at the pres- 
ent, might seem salutary, might, in the end, prove 
the overthrow of the system itself. Hence, its 
powers are expressed in general terms, leaving to 
the legislature, from time to time, to adopt its 
own means to effectuate legitimate objects, and to 
mould and model the exercise of its powers, as its 
own wisdom, or the public interests, should re- 
quire." 
Again, Mr. Chief Justice Marshall, in M'Cullough 

v. Maryland, 17 U. S. 315-405, decided March 7th, 

1819, said: 

"If any one proposition could command the 
universal assent of mankind, we might expect it 
to be this — that the government of the Union, 
though limited in its powers, is supreme within 
its sphere of action. This would seem to result, 
necessarily, from its nature. It is the govern- 
ment of all; its powers are delegated by all; it 
represents all, and acts for all. Though any one 
state may be willing to control its operations, no 
state is willing to allow others to control them. 
The nation, on those subjects on which it can act, 
must necessarily bind its component parts. But 
this question is not left to mere reason: the peo- 
ple have, in express terms, decided it, by saying, 



10 



'this constitution, and the laws of the United 
States, which shall be made in pursuance thereof, ' 
'shall be the supreme law of the land,' and by re- 
quiring that the members of the state legislatures, 
and the officers of the executive and judicial de- 
partments of the states, shall take the oath of 
fidelity to it. The government of the United 
States, then, though limited in its powers, is 
supreme ; and its laws, when made in pursuance of 
the constitution, form the supreme lav/ of the 
land, 'anything in the constitution or laws of any 
state to the contrary notwithstanding.' 

§§420-1. "We admit, as all must admit, that 
the powers of the government are limited, and 
that its limits are not to be transcended. But we 
think the sound construction of the constitution 
must allow to the national legislature that discre- 
tion, with respect to the means by which the pow- 
ers it confers are to be carried into execution. 
which will enable that body to perform the high 
duties assigned to it, in the manner most bene- 
ficial to the people. Let the end be legitimate, let 
it be within the scope of the constitution, and all 
means which are appropriate, which are plainly 
adapted to that end, which are not prohibited, but 
consist with the letter and spirit of the constitu- 
tion, are constitutional." 

Ninth: But perhaps a simple solution may be 
had. In the Preamble, separate the words "domestic'' 
and "tranquility" and insert between them the words 
"and foreign," making the phrase to read: "insure 
domestic and foreign tranquility," a Twentieth 
Amendment for a Twentieth Century. 



11 



Tenth: National sovereignties must be preserv- 
ed, and therefore, the most that can be safely done at 
present is to form a "Round Table" to maintain peace 
by providing for immediate call together of independ- 
ent nations in the event one or more nations indicate 
intentions of strife or conquest. Proper remedies can 
be determined as of the then present, and notice given 
to the offenders if they persist in the course proposed. 
The delegation of permanent direction to a body of 
delegates will lead to arbitrary and offensive deci- 
sions, requiring withdrawal for national self-defense. 
If the instrument in question can be limited, de facto, 
within such bounds, the form may be considered more 
or less immaterial. 

Eleventh: Certain propositions are set forth in 
the instrument, the enforcement and practice of which 
will overturn well denned principles of law as estab- 
lished in all civilized nations, and lead to international 
combinations and conspiracies which will inevitably 
become uncontrollable. Such theories now threaten 
the organized existence of the Allied and Associated, 
Powers, and if set up by world-wide adoption, what 
answer can there be made against them for individual 
national safety? 

Respectfully submitted, 

A. E. Anderson, 
A Citizen of the United States, 

for himself and other "People 

of the United States." 



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